8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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sediment that would otherwise clog the channel and create a number of problems. When
natural flows are depleted, the resulting sediment build-up can cause flooding, erosion,
meandering of the streambed, and a reduction in the overall capacity to carry runoff. In
addition, in areas where reservoirs or major diversions prevent periodic high spring
runoff that historically scoured the streambed, new vegetation growth can encroach on
the channel and further reduce its capacity.

Instream Flow Strategies or Western States

In recognition of the many benefits of undeveloped waters, most western state
legislatures have enacted statutes to protect in-place uses. The purposes of these laws
typically incorporate the desire to protect fish life, although the enabling statutes also
reflect the variety of values associated with instream waters. For instance, California
officials are authorized to protect free-flowing water for recreation and the enhancement
of wildlife resources.2 In Idaho, instream flow protection includes the promotion of
hydropower/ while Colorado's statute broadly provides that instream flow rights be
designed to "protect the natural environment to a reasonable degree."4 Alaska legislators
specified that instream flow rights may be created to promote navigation, water quality,
fish migration, wildlife habitat, float plane landing, and a number of other beneficial
uses.s

As of 1993, only five of the 17 western states do not have legislatively created
programs to promote instream flow protection. In two of these states, Arizona and
Nevada, officials have administratively recognized the right to establish instream flow
rights under certain conditions independent of expressed legislative authorization. Only
New Mexico, North Dakota, and South Dakota have elected to neither administratively
nor legislatively recognize instream flows as a protectable beneficial use of water under
any circumstances.

The characteristics and effectiveness of in-place water protection strategies
embodied in statutes differ greatly from state to state. The legislatively created programs
fall into four basic categories described in the following sections.

Prohibitions Against New Diversions

The earliest form of in-place water flow protection to appear legislatively in the
West involved prohibiting new diversions from specified streams. In the 1920s, Oregon
placed a moratorium on new withdrawals from a number of streams with important
salmon fisheries and scenic beauty. A typical statute read:

The unappropriated waters of Milton Creek and its
tributaries are withdrawn from appropriation except for